The judgment of the court below is reversed, and the case is remanded to the Changwon District Court Panel Division.

The grounds of appeal are examined.

The lower court upheld the first instance judgment that convicted the Defendant by applying Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Aggravated Punishment Act”) and Article 330 of the Criminal Act to the facts charged in the instant case.

Of Article 5-4(1) of the Specific Crimes Aggravated Punishment Act, the part concerning Article 330 of the Criminal Act (hereinafter “instant provisions of the Specific Crimes Aggravated Punishment Act”) is the purport that a person who habitually commits a crime under Article 330 of the Criminal Act shall be punished more heavily than that of Articles 332 and 330 of the Criminal Act (hereinafter “instant provisions”).

However, the provisions of the Specific Crimes Aggravated Punishment Act, other than the elements of the instant penal provision, does not entirely add the signs of special aggravated constituent elements, and only increases the statutory penalty, thereby causing confusion in the application of the law, which leads to the confusion in the application of the law. Moreover, unlike the punishment prescribed in the instant penal provision, the statutory punishment, unlike the punishment prescribed in the instant penal provision, adds a multiple-choice life imprisonment sentence to a different type of imprisonment, and the minimum sentence of imprisonment is set at three years, thereby failing to fully satisfy the legitimacy and balance in the penal system. Accordingly, whether a provision is applied at the discretion of prosecution, resulting in serious imbalance of punishment, and thus contravenes the basic principles of the Constitution or the principle of equality.

Therefore, in this case, prosecuted by applying the provisions of the Act on the Aggravated Punishment of Specific Crimes to the charges of committing an offense falling under the provisions of the Criminal Act, the court below should have deliberated and judged on whether the provisions of the Act on the Aggravated Punishment of Specific Crimes were unconstitutional or whether the procedures for modifying the indictment to avoid the unconstitutional outcome according to their application, but without examining them, it is guilty as the charges of violating the provisions of the Aggravated Punishment of Specific Crimes Act.